| People v Posner |
| 2012 NY Slip Op 07705 [100 AD3d 805] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JanePosner, Appellant. |
—[*1] Adam B. Levy, District Attorney, Carmel, N.Y. (Mary Jane MacCrae of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Reitz, J.),rendered August 12, 2010, convicting her of grand larceny in the second degree, upon her plea ofguilty, and imposing an indeterminate term of imprisonment of 5 to 15 years, directing her tomake restitution, and directing her to file a confession of judgment as a component of restitution.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, (1) by vacating the sentence imposed thereon, and (2) by vacating the requirement thatthe defendant file a confession of judgment as a component of restitution and vacating anyconfession of judgment that has been filed; as so modified, the judgment is affirmed, and thematter is remitted to the County Court, Putnam County, for resentencing.
In January 2010, the defendant, a former attorney, pleaded guilty to grand larceny in thesecond degree in connection with the theft of the sum of $339,719.79 from the complainant'sattorney escrow account. The plea was entered upon a promise that the sentencing court wouldsentence the defendant to a term of probation of five years, and restitution in the sum of$339,719.79, with a down payment in the sum of $50,000 to be made upon sentencing, and theremainder to be paid over the course of approximately 12 weeks. During the plea proceeding, thedefendant was warned that if she failed to make the $50,000 restitution down payment, theCounty Court would not be bound by its promise, and the defendant would face incarceration.
In August 2010, the defendant moved to withdraw her plea of guilty, contending, inter alia,that her plea was not knowingly and voluntarily entered because she had not been given asufficient opportunity to determine whether she could, in fact, make the $50,000 restitution downpayment upon sentencing. When the defendant appeared for sentencing on August 12, 2010, theCounty Court denied the defendant's motion to withdraw her plea of guilty, noting that thedefendant had failed to make the $50,000 restitution down payment. According to theprosecution, the defendant had only made restitution in the sum of $4,000. The defendant argued,inter alia, that after the plea, she learned that she was mistaken as to her ability to make the$50,000 restitution down payment. The County Court sentenced the defendant to anindeterminate term of imprisonment of 5 to 15 years, plus restitution in the sum of $335,719.79,and directed her to file a confession of [*2]judgment as acomponent of restitution. The defendant appeals.
Contrary to the defendant's contention, the County Court did not improperly delegate the pleaallocution to the prosecutor (see Peoplev Bethune, 91 AD3d 966, 966-967 [2012]).
A court may impose an enhanced sentence for a defendant's failure to make restitution priorto the sentencing date, as specified in a plea agreement, if the failure to make the restitution waswillful (see People v Hassman, 70AD3d 716, 717 [2010]; People vBassoff, 51 AD3d 682, 683 [2008]; People v Birch, 35 AD3d 1026 [2006]). However, where adefendant's failure to pay the stipulated amount of restitution within the agreed time frame wasnot willful, and the defendant seeks to withdraw a plea of guilty rather than accept an enhancedsentence, the court must either extend the time for the payment of the restitution or grant thedefendant's application to withdraw the plea (see People v Hassman, 70 AD3d at717-718; People v Almo, 300 AD2d 503, 504 [2002]).
"Willfulness may be found where the defendant is able to make the restitution as ordered bythe court, but refuses to do so, or where the defendant fails to make sufficient bona fide efforts toobtain the resources that would allow compliance with the restitution order, or where, in the firstinstance, the defendant agreed to pay the restitution in order to obtain the benefits of a favorableplea, but knew at the time that he or she would very likely be unable to satisfy the obligation"(People v Hassman, 70 AD3d at 718; cf. Bearden v Georgia, 461 US 660,667-668 [1983]; People v Amorosi, 96 NY2d 180, 184 [2001]).
Under the circumstances of this case, the County Court did not conduct an adequate inquiryinto whether the defendant's failure to timely make the restitution down payment in the sum of$50,000 was willful, and the court did not have sufficient information before it to make thatdetermination (see People v Hassman, 70 AD3d at 717). Therefore, we must vacate thesentence imposed upon the defendant, and remit the matter to the County Court, Putnam County,for a resentencing proceeding at which the defendant is to be given an opportunity to withdrawher plea of guilty upon a showing that her failure to timely make the $50,000 restitution downpayment was not willful. Should the defendant fail to make such a showing, or choose not to seekwithdrawal of the plea, the County Court may reimpose a sentence that includes a term ofimprisonment (see id. at 718).
In addition, the County Court erred in directing the defendant to file a confession ofjudgment as a component of restitution. "Statutory provisions applicable to the collection ofrestitution do not authorize the execution and filing of a confession of judgment as a condition ofthe sentence" (People v Harris, 72AD3d 1110, 1113 [2010], citing CPL 420.10). Accordingly, we must modify the judgmentalso to delete the requirement that the defendant file a confession of judgment, and vacate anyconfession of judgment which may have been filed pursuant to that directive (see CPL470.15 [4] [c]).
The defendant further contends that she was deprived of the constitutional right to theeffective assistance of counsel due to, among other things, the failure of assigned counsel toinform her, prior to the plea, that a restitution down payment would be required. Since thedefendant's claim of ineffective assistance of counsel is based, in part, on matter appearing on therecord and, in part, on matter outside the record, she has presented a " 'mixed claim[ ]' ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011], quoting People v Evans, 16 NY3d 571, 575 n 2 [2011], cert denied565 US —, 132 S Ct 325 [2011]). In this case, it is not evident from the matter appearingon the record that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]).Since the defendant's claim of ineffective assistance cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety.
In light of our determination, we need not address the defendant's remaining [*3]contention. Rivera, J.P., Balkin, Leventhal and Chambers, JJ.,concur.